12 U.S.C. § 5432 — Transfer of employees

Page 1919 TITLE 12—BANKS AND BANKING § 5432 1 See References in Text note below. 1014, and 1032 of Title 18, Crimes and Criminal Proce- dure, sections 321 and 714 of Title 31, Money and Fi- nance, section 41501 of Title 34, Crime Control and Law Enforcement, sections 4003 and 8105 of Title 42, The Public Health and Welfare, and section 3502 of Title 44, Public Printing and Documents, repealed section 1441a of this title, enacted provisions set out as notes under sections 1, 16, 1438, 1787, 1812, 1817, and 1821 of this title and section 906 of Title 2, and amended provisions set out as notes under sections 1437, 1463, 1464, 1467a, 1707, 1812, and 1818 of this title. For complete classification of title III to the Code, see Short title note set out under section 5301 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as a note under section 5301 of this title. § 5432. Transfer of employees (a) In general (1) Office of Thrift Supervision employees (A) In general Except as provided in section 5584 of this title, all employees of the Office of Thrift Supervision shall be transferred to the Office of the Comptroller of the Currency or the Corporation for employment in accordance with this section. (B) Allocating employees for transfer to re- ceiving agencies The Director of the Office of Thrift Super- vision, the Comptroller of the Currency, and the Chairperson of the Corporation shall— (i) jointly determine the number of em- ployees of the Office of Thrift Supervision necessary to perform or support the func- tions that are transferred to the Office of the Comptroller of the Currency or the Corporation by this title; 1 and (ii) consistent with the determination under clause (i), jointly identify employees of the Office of Thrift Supervision for transfer to the Office of the Comptroller of the Currency or the Corporation. (2) Employees transferred; service periods credited For purposes of this section, periods of serv- ice with a Federal home loan bank, a joint of- fice of Federal home loan banks, or a Federal reserve bank shall be credited as periods of service with a Federal agency. (3) Appointment authority for excepted service transferred (A) In general Except as provided in subparagraph (B), any appointment authority of the Office of Thrift Supervision under Federal law that relates to the functions transferred under section 5412 of this title, including the regu- lations of the Office of Personnel Manage- ment, for filling the positions of employees in the excepted service shall be transferred to the Comptroller of the Currency or the Chairperson of the Corporation, as appro- priate. (B) Declining transfers allowed The Comptroller of the Currency or the Chairperson of the Corporation may decline to accept a transfer of authority under sub- paragraph (A) (and the employees appointed under that authority) to the extent that such authority relates to positions excepted from the competitive service because of their confidential, policy-making, policy-de- termining, or policy-advocating character. (4) Additional appointment authority Notwithstanding any other provision of law, the Office of the Comptroller of the Currency and the Corporation may appoint transferred employees to positions in the Office of the Comptroller of the Currency or the Corpora- tion, respectively. (b) Timing of transfers and position assignments Each employee to be transferred under sub- section (a)(1) shall— (1) be transferred not later than 90 days after the transfer date; and (2) receive notice of the position assignment of the employee not later than 120 days after the effective date of the transfer of the em- ployee. (c) Transfer of functions (1) In general Notwithstanding any other provision of law, the transfer of employees under this part shall be deemed a transfer of functions for the pur- pose of section 3503 of title 5. (2) Priority If any provision of this part conflicts with any protection provided to a transferred em- ployee under section 3503 of title 5, the provi- sions of this part shall control. (d) Employee status and eligibility The transfer of functions and employees under this part, and the abolishment of the Office of Thrift Supervision under section 5413 of this title, shall not affect the status of the trans- ferred employees as employees of an agency of the United States under any provision of law. (e) Equal status and tenure positions (1) Status and tenure Each transferred employee from the Office of Thrift Supervision shall be placed in a posi- tion at the Office of the Comptroller of the Currency or the Corporation with the same status and tenure as the transferred employee held on the day before the date on which the employee was transferred. (2) Functions To the extent practicable, each transferred employee shall be placed in a position at the Office of the Comptroller of the Currency or the Corporation, as applicable, responsible for the same functions and duties as the trans- ferred employee had on the day before the date on which the employee was transferred, in ac- cordance with the expertise and preferences of the transferred employee. (f) No additional certification requirements An examiner who is a transferred employee shall not be subject to any additional certifi- Page 1920 TITLE 12—BANKS AND BANKING § 5432 cation requirements before being placed in a comparable position at the Office of the Comp- troller of the Currency or the Corporation, if the examiner carries out examinations of the same type of institutions as an employee of the Office of the Comptroller of the Currency or the Cor- poration as the employee was responsible for carrying out before the date on which the em- ployee was transferred. (g) Personnel actions limited (1) Protection (A) In general Except as provided in paragraph (2), each affected employee shall not, during the 30- month period beginning on the transfer date, be involuntarily separated, or involuntarily reassigned outside his or her locality pay area. (B) Affected employees For purposes of this paragraph, the term ‘‘affected employee’’ means— (i) an employee transferred from the Of- fice of Thrift Supervision holding a perma- nent position on the day before the trans- fer date; and (ii) an employee of the Office of the Comptroller of the Currency or the Cor- poration holding a permanent position on the day before the transfer date. (2) Exceptions Paragraph (1) does not limit the right of the Office of the Comptroller of the Currency or the Corporation to— (A) separate an employee for cause or for unacceptable performance; (B) terminate an appointment to a posi- tion excepted from the competitive service because of its confidential policy-making, policy-determining, or policy-advocating character; or (C) reassign an employee outside such em- ployee’s locality pay area when the Office of the Comptroller of the Currency or the Cor- poration determines that the reassignment is necessary for the efficient operation of the agency. (h) Pay (1) 30-month protection Except as provided in paragraph (2), during the 30-month period beginning on the date on which the employee was transferred under this part, a transferred employee shall be paid at a rate that is not less than the basic rate of pay, including any geographic differential, that the transferred employee received during the pay period immediately preceding the date on which the employee was transferred. Notwith- standing the preceding sentence, if the em- ployee was receiving a higher rate of basic pay on a temporary basis (because of a temporary assignment, temporary promotion, or other temporary action) immediately before the transfer, the Agency may reduce the rate of basic pay on the date the rate would have been reduced but for the transfer, and the protected rate for the remainder of the 30-month period will be the reduced rate that would have ap- plied but for the transfer. (2) Exceptions The Comptroller of the Currency or the Cor- poration may reduce the rate of basic pay of a transferred employee— (A) for cause, including for unacceptable performance; or (B) with the consent of the transferred em- ployee. (3) Protection only while employed This subsection shall apply to a transferred employee only during the period that the transferred employee remains employed by Of- fice of the Comptroller of the Currency or the Corporation. (4) Pay increases permitted Nothing in this subsection shall limit the authority of the Comptroller of the Currency or the Chairperson of the Corporation to in- crease the pay of a transferred employee. (i) Benefits (1) Retirement benefits for transferred employ- ees (A) In general (i) Continuation of existing retirement plan Each transferred employee shall remain enrolled in the retirement plan of the transferred employee, for as long as the transferred employee is employed by the Office of the Comptroller of the Currency or the Corporation. (ii) Employer’s contribution The Comptroller of the Currency or the Chairperson of the Corporation, as appro- priate, shall pay any employer contribu- tions to the existing retirement plan of each transferred employee, as required under each such existing retirement plan. (B) Definition In this paragraph, the term ‘‘existing re- tirement plan’’ means, with respect to a transferred employee, the retirement plan (including the Financial Institutions Retire- ment Fund), and any associated thrift sav- ings plan, of the agency from which the em- ployee was transferred in which the em- ployee was enrolled on the day before the date on which the employee was transferred. (2) Benefits other than retirement benefits (A) During first year (i) Existing plans continue During the 1-year period following the transfer date, each transferred employee may retain membership in any employee benefit program (other than a retirement benefit program) of the agency from which the employee was transferred under this title,1 including any dental, vision, long term care, or life insurance program to which the employee belonged on the day before the transfer date. (ii) Employer’s contribution The Office of the Comptroller of the Cur- rency or the Corporation, as appropriate, shall pay any employer cost required to Page 1921 TITLE 12—BANKS AND BANKING § 5432 extend coverage in the benefit program to the transferred employee as required under that program or negotiated agreements. (B) Dental, vision, or life insurance after first year If, after the 1-year period beginning on the transfer date, the Office of the Comptroller of the Currency or the Corporation deter- mines that the Office of the Comptroller of the Currency or the Corporation, as the case may be, will not continue to participate in any dental, vision, or life insurance program of an agency from which an employee was transferred, a transferred employee who is a member of the program may, before the de- cision takes effect and without regard to any regularly scheduled open season, elect to en- roll in— (i) the enhanced dental benefits program established under chapter 89A of title 5; (ii) the enhanced vision benefits estab- lished under chapter 89B of title 5; and (iii) the Federal Employees’ Group Life Insurance Program established under chapter 87 of title 5, without regard to any requirement of insurability. (C) Long term care insurance after 1st year If, after the 1-year period beginning on the transfer date, the Office of the Comptroller of the Currency or the Corporation deter- mines that the Office of the Comptroller of the Currency or the Corporation, as appro- priate, will not continue to participate in any long term care insurance program of an agency from which an employee transferred, a transferred employee who is a member of such a program may, before the decision takes effect, elect to apply for coverage under the Federal Long Term Care Insur- ance Program established under chapter 90 of title 5 under the underwriting require- ments applicable to a new active workforce member, as described in part 875 of title 5, Code of Federal Regulations (or any suc- cessor thereto). (D) Contribution of transferred employee (i) In general Subject to clause (ii), a transferred em- ployee who is enrolled in a plan under the Federal Employees Health Benefits Pro- gram shall pay any employee contribution required under the plan. (ii) Cost differential The Office of the Comptroller of the Cur- rency or the Corporation, as applicable, shall pay any difference in cost between the employee contribution required under the plan provided to transferred employees by the agency from which the employee transferred on July 21, 2010, and the plan provided by the Office of the Comptroller of the Currency or the Corporation, as the case may be, under this section. (iii) Funds transfer The Office of the Comptroller of the Cur- rency or the Corporation, as the case may be, shall transfer to the Employees Health Benefits Fund established under section 8909 of title 5, an amount determined by the Director of the Office of Personnel Management, after consultation with the Comptroller of the Currency or the Chair- person of the Corporation, as the case may be, and the Office of Management and Budget, to be necessary to reimburse the Fund for the cost to the Fund of providing any benefits under this subparagraph that are not otherwise paid for by a transferred employee under clause (i). (E) Special provisions to ensure continuation of life insurance benefits (i) In general An annuitant, as defined in section 8901 of title 5, who is enrolled in a life insur- ance plan administered by an agency from which employees are transferred under this title 1 on the day before the transfer date shall be eligible for coverage by a life insurance plan under sections 8706(b), 8714a, 8714b, or 8714c of title 5, or by a life insurance plan established by the Office of the Comptroller of the Currency or the Corporation, as applicable, without regard to any regularly scheduled open season or any requirement of insurability. (ii) Contribution of transferred employee (I) In general Subject to subclause (II), a transferred employee enrolled in a life insurance plan under this subparagraph shall pay any employee contribution required by the plan. (II) Cost differential The Office of the Comptroller of the Currency or the Corporation, as the case may be, shall pay any difference in cost between the benefits provided by the agency from which the employee trans- ferred on July 21, 2010, and the benefits provided under this section. (III) Funds transfer The Office of the Comptroller of the Currency or the Corporation, as the case may be, shall transfer to the Federal Employees’ Group Life Insurance Fund established under section 8714 of title 5, an amount determined by the Director of the Office of Personnel Management, after consultation with the Comptroller of the Currency or the Chairperson of the Corporation, as the case may be, and the Office of Management and Budget, to be necessary to reimburse the Federal Em- ployees’ Group Life Insurance Fund for the cost to the Federal Employees’ Group Life Insurance Fund of providing benefits under this subparagraph not otherwise paid for by a transferred em- ployee under subclause (I). (IV) Credit for time enrolled in other plans For any transferred employee, enroll- ment in a life insurance plan adminis- tered by the agency from which the em- Page 1922 TITLE 12—BANKS AND BANKING § 5433 1 See References in Text note below. ployee transferred, immediately before enrollment in a life insurance plan under chapter 87 of title 5, shall be considered as enrollment in a life insurance plan under that chapter for purposes of sec- tion 8706(b)(1)(A) of title 5. (j) Incorporation into agency pay system Not later than 30 months after the transfer date, the Comptroller of the Currency and the Chairperson of the Corporation shall place each transferred employee into the established pay system and structure of the appropriate employ- ing agency. (k) Equitable treatment In administering the provisions of this sec- tion, the Comptroller of the Currency and the Chairperson of the Corporation— (1) may not take any action that would un- fairly disadvantage a transferred employee relative to any other employee of the Office of the Comptroller of the Currency or the Cor- poration on the basis of prior employment by the Office of Thrift Supervision; (2) may take such action as is appropriate in an individual case to ensure that a transferred employee receives equitable treatment, with respect to the status, tenure, pay, benefits (other than benefits under programs adminis- tered by the Office of Personnel Management), and accrued leave or vacation time for prior periods of service with any Federal agency of the transferred employee; (3) shall, jointly with the Director of the Of- fice of Thrift Supervision, develop and adopt procedures and safeguards designed to ensure that the requirements of this subsection are met; and (4) shall conduct a study detailing the posi- tion assignments of all employees transferred pursuant to subsection (a), describing the pro- cedures and safeguards adopted pursuant to paragraph (3), and demonstrating that the re- quirements of this subsection have been met; and shall, not later than 365 days after the transfer date, submit a copy of such study to Congress. (l) Reorganization (1) In general If the Comptroller of the Currency or the Chairperson of the Corporation determines, during the 2-year period beginning 1 year after the transfer date, that a reorganization of the staff of the Office of the Comptroller of the Currency or the Corporation, respectively, is required, the reorganization shall be deemed a ‘‘major reorganization’’ for purposes of afford- ing affected employees retirement under sec- tion 8336(d)(2) or 8414(b)(1)(B) of title 5. (2) Service credit For purposes of this subsection, periods of service with a Federal home loan bank or a joint office of Federal home loan banks shall be credited as periods of service with a Federal agency. (Pub. L. 111–203, title III, § 322, July 21, 2010, 124 Stat. 1529.) Editorial Notes REFERENCES IN TEXT This title, referred to in subsecs. (a)(1)(B)(i) and (i)(2)(A)(i), (E)(i), is title III of Pub. L. 111–203, July 21, 2010, 124 Stat. 1520, known as the Enhancing Financial Institution Safety and Soundness Act of 2010, which en- acted this subchapter and sections 4b and 16 of this title, amended sections 1, 11, 248, 461, 481, 482, 1438, 1462, 1462a, 1463, to 1464, 1466a, 1467, 1467a, 1468, 1468a, to 1468b, 1470, 1701c, 1701p–1, 1708, 1757, 1785, 1786, 1787, 1812, 1813, 1817, 1818, 1820, 1821, 1823, 1828, 1829, 1831e, 1831j, 1833b, 1833e, 1834, 1841, 1843, 1844, 1861, 1867, 1881, 1882, 1884, 1972, 2709, 2902, 2905, 3206 to 3208, 3332, 4515, and 4517 of this title, section 906 of Title 2, The Congress, sections 78c, 78l, 78o–5, and 78w of Title 15, Commerce and Trade, sec- tions 212, 657, 981, 982, 1006, 1014, and 1032 of Title 18, Crimes and Criminal Procedure, sections 321 and 714 of Title 31, Money and Finance, section 41501 of Title 34, Crime Control and Law Enforcement, sections 4003 and 8105 of Title 42, The Public Health and Welfare, and sec- tion 3502 of Title 44, Public Printing and Documents, repealed section 1441a of this title, enacted provisions set out as notes under sections 1, 16, 1438, 1787, 1812, 1817, and 1821 of this title and section 906 of Title 2, and amended provisions set out as notes under sections 1437, 1463, 1464, 1467a, 1707, 1812, and 1818 of this title. For complete classification of title III to the Code, see Short title note set out under section 5301 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as a note under section 5301 of this title. § 5433. Property transferred (a) Property defined For purposes of this section, the term ‘‘prop- erty’’ includes all real property (including lease- holds) and all personal property, including com- puters, furniture, fixtures, equipment, books, accounts, records, reports, files, memoranda, paper, reports of examination, work papers, and correspondence related to such reports, and any other information or materials. (b) Property of the Office of Thrift Supervision (1) In general No later than 90 days after the transfer date, all property of the Office of Thrift Supervision (other than property described under para- graph (b)(2)) that the Comptroller of the Cur- rency and the Chairperson of the Corporation jointly determine is used, on the day before the transfer date, to perform or support the functions of the Office of Thrift Supervision transferred to the Office of the Comptroller of the Currency or the Corporation under this title,1 shall be transferred to the Office of the Comptroller of the Currency or the Corpora- tion in a manner consistent with the transfer of employees under this part. (2) Personal property All books, accounts, records, reports, files, memoranda, papers, documents, reports of ex- amination, work papers, and correspondence of the Office of Thrift Supervision that the Comptroller of the Currency, the Chairperson